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A TRIBUTE TO 



JUDGE Sl^RAGUE. 



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^ Tribnte to Judge Sprague. 



REMARKS 



RICHARD H. DANA, JR., ESQ.: 



AT A DINNER GIVEN TO THE 



OFFICERS OF THE ''KEARSARGE/' 



In response to a Toast in honor of the Judiciary. 



Printed for Private Circuration by some of the Friends of Judge Sprague. 



BOSTON: 
ALFRED MUDGE & SON, PRINTERS, 34 SCHOOL STREET. 

1864. 






Gih 
Author 

■Prison) 



Remarks of Richard H. Dana, Jr., Esq., at a 
dinner given to Captain Winslow and the 
officers of the United States steamer Kearsarge, 
in honor of their victory over the rebel steamer 
Alabama, by the merchants and shipowners of 
Boston, November 15th, 1864, in response to 
the following toast, proposed by the Hon. 
George B. Upton, the President of the day : 

" The Judiciary of the United. States, — never 
appearing to greater advantage than when adjudi- 
cating upon maritime law, and administering justice 
as thoroughly as did our friends of the Kearsarge 
upon the Alabama in the British Channel." 



REMARKS. 



[Corrected from a Report in the Boston Daily Advertiser of Nov. 16, 1864.] 



Mr. President : 

There is an ancient maxim that laws are 
silent where arms prevail. That maxim, sir, was 
true to the fact at the time it was made. War 
knew no law. The hostile city was devoted to 
destruction by solemn religious rites. It was not 
only hostile, but accursed. Its wealth, public and 
private, was the spoil of the conqueror, and its 
inhabitants became the slaves of their captors. 
Strong men were drawn in chains at the wheels 
of the victor's chariot, and beautiful women, 
following as captives, graced the triumphal procession. 
With the disastrous battle vanished the last hope 
of the conquered. All his rights and liberties 
were cloven down. This was the state of things 
under the much admired civilization of Greece and 
Rome. And in the Old 'I'estament, it is told of a 



6 

great prince, that three score and ten kings, having 
their thumbs and great toes cut off, gathered their 
meat under his table. 

What nobler proof can there be of the excellence 
of Christian civilization than that it is no longer true 
that law is silent amid arms. The soldier draws his 
sword only at the command of the civil magistrate. 
Armies and fleets are but armed and disciplined 
international police. And it is the peculiar glory 
of modern civilization that captures upon the high 
seas, made beyond the sight or interposition of man, 
must be submitted to the adjudication of judicial 
tribunals. How great is the contrast ! In a remote 
sea, two ships fly at each other in deadly combat ; 
their thunders shock the air ; the horizon is obscured 
in a cloud of battle-smoke ; — and there is bloodshed, 
death, the sharp pursuit, surrender, victory ! The 
scene changes. Justice is sitting in her own 
temple, with calmness and dignity awaiting the 
approach of the victor and the vanquished. Before 
her they stand as equals. The captor surrenders 
his rich prize into the custody of the law. Neither 
cupidity, nor pride, nor violence can touch it ; and 
it is accounted for, scrupulously, in shillings and 
pence. The captor and the captured alike are 
represented by counsel, and thus the more fully 
equalized ; and the magistrate adjudicates, calmly 



and impartially, not by the law of the strongest, 
nor by the local law of his own country, but in 
accordance with those universal rules and maxims 
of justice, humanity and policy which the nations 
of Christendom have accepted, and which we call 
the international law. 

The consummate orator at your side, whom New 
England delights to honor,* has just told us that the 
late election, so exciting, so momentous, so peaceful, is 
a spectacle of moral sublimity. It is so, indeed. But 
am I assuming too much for the Judiciary if I claim 
that there is also moral sublimity in the spectacle of 
the unobtrusive magistrate, in the quiet, — even the 
dullness, of his court-room, unattended by any of the 
insignia of physical force, stilling the storm of battle , 
and bringing the pride of power, the lust of spoil, the 
will of the triumphant, to the rules of justice, humanity 
and of wise, permanent policy, in responsibility to an 
observing world, and with the assent and approbation of 
armed and jealous sovereigns ? Truly, sir, were there 
nothing else, we might, for this alone, bless the results 
of Christian civilization. And nowhere is it more 
fitting that the Judiciary should be mentioned with 
respect and gratitude, than in an assembly of merchants 
and shipowners of a great commercial city. 

* Mr. Everett. 



8 

While we honor the institution, let us not be un- 
mindful of the men who have made it what it is. 
Let us not forget the honored dead who have caused 
the jurisprudence of the United States, in its inter- 
national relations, to be respected the world over. 
In the science of international law, there are no 
names more honored than those of Marshall, Story, 
Kent and Wheaton. They are authority wherever, 
in the world, there is authority in reason and right. 
In the exciting controversies of the last few years, 
to unwilling hearers, Mr. Vernon Harcourt, (better 
known, perhaps, as Historicus, of the London 
Times,) has borne his testimony that the prize decisions 
of the American Courts in the last generation have 
commanded the respect of the world ; and it is 
no small thing to say that there is no decision 
of the Supreme Court of the United States in a 
prize cause, against which a settled opinion has 
been formed. And, recently, in an excited debate 
in the House of Commons, where our country 
and its cause had few friends, the Solicitor-Gen- 
eral, Sir Roundell Palmer, the best authority in 
Parliament on that subject, told a reluctant au- 
dience that the prize decisions made by the Ameri- 
can Courts in the present war, had been beyond 
exception. 

This leads me to remember, sir, that I should 



not do my duty to your sentiment, if 1 paused 
with the jurists of the last generation. No, sir, 
there is another name that Massachusetts, that 
Boston, will demand to have mentioned in this 
honorable connection, that is the name of Judge 
Sprague. 

I will not pronounce an eulogy upon Judge 
Sprague. I have known him for many years, and 
for the last four years intimately, in official rela- 
tions. Were T to say in full all that I think 
of his moral and intellectual qualities, and of his 
legal learning, I should be suspected of wander- 
ing into the fields of panygeric. But some 
things I may say, which will carry along with 
them your glad assent. 

When this insurrection broke out, there was an 
unsettled condition of public opinion as to the rela- 
tions of the rebel states and their inhabitants to 
the National Government, and the rights and 
powers of the National Government in dealing 
with a rebellion inaugurated by asserted State 
authority. Judge Sprague took the occasion of the 
first meeting of the Grand Jury to deliver a 
charge on the doctrine of allegiance and treason, 
as applicable to this rebellion, and on the powers 
and rights of the General Government. The 
Grand Jury unanimously requested a copy for the 



lU 

press. It was published, largely circulated, ex- 
tracted into the daily journals, and freely discussed 
and examined. I believe, sir, all lawyers will 
agree with me that that charge did more to 
settle the minds of professional men in this part 
of the country, and of other men studying the 
subject, than anything that appeared, from what- 
ever source, in the early stages of the contro- 
versy. The President of the United States, 
(James Buchanan,) had just declared, in the most 
solemn public document, that although secession 
by a State was illegal, the Government had no 
power to coerce a State by force of arms, — that 
the moment the insurrection got beyond the reacli of 
the Marshal, the Government was powerless. Judge 
Sprague allowed of no line beyond which the 
Government could not follow a treasonable rebel- 
lion. He refused to acknowledge that the extent 
of the power of the rebels furnished the limit of 
our own. He allowed of no interregnum, no 

point of pause and powerlessness. Just so fast 
and far as the Judge and the Marshal were dis- 
placed, the General and the Admiral came in. 
There was no vacant place for treason to tiourish 
in between peace and war, between the authority 
of the writ and the power of the bayonet. 

The doctrine of Judge Sprague's charge would be 



11 

accepted law now. I assure you, sir, — I assure you 
all, gentlemen, it was not so then. We were like 
a surprised army of new levies, attacked in front and 
flank, before the dawn of day. Friends and foes were 
mingled together, lines of defence were obscured by 
the darkness and smoke and crowd ; the weapons of 
resistance were lost or overlooked, the trumpets blew 
uncertain blasts, and the bravest and wisest wielded 
their unwonted weapons with uncertain hands. I re- 
member a barrister of considerable legal and political 
credit questioning with Judge Sprague, after his 
charge, whether a man could be tried for treason in 
Massachusetts, where there was no war. He objected 
that the constitution limited treason to the levying of 
war, and to overt acts, and guaranteed to each man a 
trial in the State in which the treason was com- 
mitted. Judge Sprague replied, '^ Bring me a man 
who here, in Massachusetts, has, by an act however 
slight, and however remote from the field of war, 
intentionally given aid to the rebels in arms, as by 
communicating to them information or advice, and 1~ 
will not only show you that I can try him, but that 
I can have him hanged." 

The first prize brought to Boston, the Amy War- 
wick, raised the great question, whether, in a rebel- 
lion risen to the dimensions of war, the Government 
could make prize, at sea, of a vessel and cargo of a 



12 

citizen of the United States, without proof of his 
having been engaged in any treasonable acts, — the 
cargo not being contraband, nor the vessel guilty of 
an intent to break blockade, — on the sole ground 
that his actual and permanent residence was in a 
region of country in the possession of the rebel au- 
thorities. It raised also the question, whether, if the 
General Government could do this, the power of 
ordering such capture could be exercised by the 
President, without a special Act of Congress declar- 
ing war, or recognizing that the state of war existed. 
The first question went to the very foundations of all 
social organizations, the springs of all national life. 
The latter presented a question of the elements of 
our constitutional law. Judge Sprague was fully 
equal to them both. He rose to the height of the 
great argument. His decision gave the lead to the 
bar and courts on both those questions ; and to 
this day, after all the arguments, discussions and 
decisions, from the lower tribunals to the highest, no 
substantial departure has been made from the grounds 
upon which he placed his decision. He may well rest 
his reputation, as a constitutional and international jurist, 
upon his charges to the grand jury and the decision in 
the Amy Warwick. But these are not all, The entire 
line of his decisions during this war, in prize causes, 
on points of practice as well as of doctrine, has given 



13 

him an enviable reputation throughout the land. I 
would particularly refer to his opinion in the case of 
the French ship La Manche, which he restored to its 
owners, where he made a most critical and searching 
analysis of the British precedents on the subject of 
the liability of captors to pay damages in a case of 
restitution, developing for the first time, in a satisfac- 
tory manner, the reasons of the doctrine, and its qual- 
ifications. Another class of interesting prize cases 
has been before him, as to which no decisions of 
any consequence have been made elsewhere. I refer to 
questions of participation in the distribution of prizes 
among alleged joint-captors, or vessels within signal 
distance. In the memorable case of the iron clad 
ram Atlanta, captured in Wassaw Sound by the 
monitors Weehawken and Nahant, he made a most 
thorough analysis of all the precedents on the sub- 
ject of joint captors, going, as he always does, be- 
yond the form and letter into the reasons of the 
decisions, and developing a philosophical principle 
by which all cases may be tested. In the cases of 
the Cherokee, Aries, and Ella and Annie, Judge 
Sprague, with a patience of investigation into details, 
and a fullness and carefulness of deliberation, of 
which no one, perhaps, but myself knows the extent, 
has decided, I think satisfactorily to parties and to 
the Government alike, the vexed and embarrassing 



14 

questions relating to signal distances by night and day, 
by flags, by night-signals, by rockets and guns, and 
those questions arising out of co-operation in a joint 
enterprise of blockade, search or pursuit. 

You have been pleased to speak, Mr. President, 
in language complimentary to myself, of the repu- 
tation this district enjoys by reason of the honest, 
rapid and inexpensive manner in which its prize pro- 
ceedings have been conducted. AVhatever praise you 
may have designed for the Attorney of the United 
States, it carries with it a deserved tribute to the 
Judge. Judge Sprague's integrity is not of the neg- 
ative sort. It is vigilant and aggressive. It would 
allow neither extortion, chicanery nor delay within 
the reach of its observation, if any such were in- 
tended, and if rules and the application of rules 
could prevent it ; while his learning and carefulness, 
and the enlarged philosophical character of his mind, 
secure him the confidence of the government, the 
captors and claimants, in the decision of the greatest 
questions. 

It is not generally known that the magistrate com- 
monly called the United States District Judge has 
the most varied, and in some respects the highest 
jurisdiction ever exercised by a single judge in England 
or America. In the District Court, he tries alone 
causes of admiralty jurisdiction, of whatever amount, 



15 

all revenue causes, whether in admiralty or at common 
law, and all criminal causes, under the Federal juris- 
diction, short of capital. But the District Judge is 
also ex officio Circuit Judge. He can hold the Circuit 
Court alone ; and, sitting alone, he constitutes the Court 
for all purposes. He can try causes of equity, 
patents, copyrights, and all common law causes within 
Federal jurisdiction, questions of prerogative writs, 
and all criminal causes ; and from his single decision 
on the law in a trial even for murder, piracy or 
treason, there is no appeal. This has been the 
jurisdiction and these the functions which your fellow- 
citizen. Judge Sprague, has exercised, going in and 
out before you for the last twenty years, — a great 
magistrate and an uncorruptible man. 

I have said all that I have just spoken with the 
more pleasure, — I correct the expression, — with more 
satisfaction to my sense of duty, from the sad reflec- 
tion that perhaps we have seen the last labors of 
this excellent magistrate. A life-long invalid, by 
great care he has been able to accomplish the 
work of a strong man. But at last the tide seems 
to be running out, to which there is no return. We 
are not without some hope, but the public must be 
prepared to reconcile itself to the loss. 

I would not leave upon your minds, gentlemen, a 
mournful impression on this auspicious night. This 



16 

gay array of honored epaulets and flags and martial 
insiofnia recalls to me that we are met to celebrate 
victory and to crown the victors. I thank you, Mr. 
President, that, in the sentiment you propose, you 
felicitously connected the Judiciary with the Naval 
service, of which our guests are the honored 
representatives, and enabled me to pay to the 
Judiciary a tribute which, I trust, will not be 
thought unfitting the special interests of this hour. 



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